When Justice goes wrong in “false arrest”


Edward Heppenstall use to teach in his lectures in the 1980’s and earlier, since he was already a white-head grandfather at that time, that truth cannot be determined by the voice of the majority or the decision of a committee, because truth honors itself and establishes itself through the Word of God. It is not the exact words but my paraphrase of it and he got it from the earlier work of Ellen White in Great Controversy 595. So truth cannot be established by populism.

Populism is a movement that is trendy today and everywhere. It is an agitation crowd that takes to the streets to demand, like a huge mob, that a certain aspect should be taken care of. They normally add a long list of do’s and don’t’s in their posters that they carry and in their verbalizations and narratives of their songs that go with it. They try to succeed in pulling someone down whom they “judged” is failing their demands or “justice”.

The problem with this kind of “justice” is the sources of evidence. Is the evidence build on “fake news’ which in turn is created by the second floor of every news outlet, who use detective like journalists to spy or steal or copy people’s data which, by connecting the dots bring a situation of guessing the truth to the fore. But is that truth? How far should the dots be to be no longer truth? What if the dots are far but all media for some reason or another, maybe on ideological grounds, either democratic or conservative or communism or secular or any other, do not want to be informed beyond the lines they drew with the scanty evidence that they found?

This becomes then a populism that is skew. But, if judges in the court of that country, their jurisdiction norm, is determined by the voice of the majority or size of the crowds and mobs of populism, then where is truth? Is it theoretically possible for truth to be kicked under the carpet by this kind of justice and jurisprudence?

A lawyer lost his license in my hometown and he was known to be a very successful lawyer. I do not know what went wrong. Advocate N. B. Albertyn. I saw his books been chucked out of his office on the street and I stopped with my car and asked if I can get it. I got it. So one of them is the fifth edition of 1968 of the Principles of South African Law.

On the issue of populism there is a section with the header: “In accordance with public opinion”. It says that “Laws must have the approval of the general public”. This is the Apartheid years laws in South Africa. “If a law is so disliked by a substantial portion of the community that they break it habitually, it is no law at all.” OK. Like and dislike. If Holliwood movies and manga and manghwa and cartoon books, novels and television dramas and programs, spin out gay lifestyles as acceptable long enough, the majority opinion will be swayed in the direction of LGBTQH promiscuity and by permissiveness, what is black will be just as right for them as what is white. Furthermore, if normativism, and we speak of the Bible as anchor to that normativsm, the Torah of Law of God given to Moses, if that is dropped as it was in the paradigm shift that came after World War II in 1950 to be replaced by Modernism that really started in 1918 but died in 1960 to be taken over by Post-modernism until 1989, then this shift from norm-directiveness in life to “norm-less” directiveness in life, then obviously the populism will make this shift as well. That is why the terms “progressiveness” is developed. It is viewing things in comparison with an earlier reluctancy and rejection of ideas and taboos, as opposed to a later and more recent acceptance of those standards once cried foul.

So populism can go skew. Why? Because human nature is not clean, spotless, untainted, untarnished, romantically all beautiful people. Humanity is sinful, says the Bible, and if you deny the Bible it will take time for you to realize that to play with snakes has the disadvantage that the snake bites its owner. Charles Bradford tells the story of a queen of a tribe who saw a mirror for sale as a merchant came to her village. She said that she wanted the mirror. She went into her room and saw herself for the first time. She saw the wrinkles. She was shocked. She threw it down on the ground and stepped on it saying: “Now I am still the most beautiful woman in this village”. The standard denied cannot solve your problem and neither can the standard itself. A rescuer is needed to bring one in line with the standard and removing it will not help at all. Grace cannot exist unless there is a Law demanding what Grace must accomplish. Grace brings into line with the Law and not against it. This is God’s law and principle in the Bible. It does not nullify the law, it keeps it. That include the Sabbath is Saturday issue as opposed to the change not by Christ or the Apostles in the Bible but by the Roman Catholic Church of Saturday to Sunday worship contra the Law of God. Populism by quantity is not going to establish the truth of this matter. The same with the smoking argument. Millions of people are smoking so it cannot be wrong, so the delusion goes. Quantity of supporters cannot underline the veracity of the truth agitated.

“Prohibitory Laws,” says the Report of the South African Sunday Observance Commision in 1913, “require the support of a strong enduring public sentiment” (G. Wille, Principles of South African Law 1968, 8). For example: prohibiting people from drinking intoxicating liquor; from gambling; “from participating in certain games or activities on Sundays. They should be readily enforceable, and the penalty should be adequate. Failing these conditions the laws are bound to fall in desuetude”.

Populism and public opinion is defined as “the views, beliefs, and prejudices of the most influential or predominant portion of the community as to the justness or propriety of a particular act or course of conduct”. It goes on to say “the public approves of what it has found to be useful or beneficial to itself, that is, what experience has shown to be in the best interests of mankind in their dealings and intercourse with one another”.

Just as I have said about a swaying sense of perception of populism from generation to generation above, so the author said: “Public opinion on many points naturally varies from time to time”. There it is. Stability in populism truth is absent. What is considered black in one generation may become white in another and vice versa. That is what he said. And he is right.

He gave the example that in Roman-Dutch law in the olden days, adultery was a criminal offence and that it became “unsuited to modern conditions. This rule fell into disuse in South Africa owing to the fact that public opinion had for long recognized the advisability of leaving the offence to be dealt with by the sanctions of morality and of religion rather than those of the criminal law…the rule had become obsolete”. This is very important. What is wrong in one generation may be right in another.

From the above it is clear: Jurisdiction is not stable and anyone crying that the Law should be obeyed at all times is doing right since it is the biblical principle, but with this reservation: laws can grow foul against the principles of the Bible on many matters of proper lifestyle. LGBTQH is one of these jurisdiction skew situations that have, just alike adultery, divorce and other matters become “obsolete to be punished or condemned or considered wrong”.

Daniel and his friends principle is needed in every generation. Is that clear? The choice to stand though the heavens fall is required every day regardless of the voice of the majority or the quantity supporting the biblically wrong.

Skew populism, skew jurisprudence and skew jurisprudence, skew justice. Skew justice and the judge made a skew decision in court. It has all the legality in shining appearance, but in essence the judge is against the Word of God and that cannot be truth any longer. “Well,” the judge will say, “you are living in the time of normativism when the Bible had to be a standard in society. We are now living in the age of relativism where a-normativism is the name of the game. ‘Everyone is right in his own way and eyes’. No one is wrong as long as it does not harm anyone”.

Wow. This is a wake-up call is it not? The problem with the statement is that humanity is not sinless. As long as people are going against God’s word a Law is needed to say that and a Bible to spell out what this law is and how it worked in past generations over a period of nearly four thousand years. In this way, the trends and progressiveness of generations were investigated and displayed in the Bible. The core value of God did not change with the tides of public opinion.

If Christianity is to be keeping its biblical orientated values and ethics, it will have to become against the jurisprudence of the day and the way to deal with this no-no, is to not participate in society’s demands but to shun away from it. To fight it, to rebel against it, is not the biblical way. Civil right movements are just as evil and the wrongs they are fighting against.

Why must Christians just abide by society status quo good or evil without trying to “overthrow” it for the better? Because Isaiah says that nations are but a “speck of dust in a bucket” from God’s perspective. There is obviously a historic reason why a nation is left to do what it is doing, but when God changes His mind, change comes swiftly. As it came with the election of Donald Trump much to the shocking surprise of the whole world. As politics are rolling in a new paradigm in South Korea, at the same time, much to the surprise of everyone here.

On the subject of “false arrest” the Book goes on to say that Justinian said in his Digesta 50.17.106 that “Libertas inaestimabilis est” which means that “freedom cannot be estimated” or as Lord de Villiers said: “The value of a man’s personal liberty is far beyond any estimate in mere money” (Wille, 1968, 531). It says that “the intentional and illegal seizure of a person is called ‘false arrest’; the intentional and illegal detention of a person is called ‘false imprisonment’”.

The intentional act of one person in seizing or imprisoning the person of another, unless by virtue of some right, is an injuria, and consequently the former person is liable in damages. The false arrest is illegal if it is “without judicial or official authority”. Since populism or public opinion determines for justice what it should or should not do, as we showed above, what of the case if society is divided 50% to 50% on a issue and populism produces two mobs one for and one against the arrest of a president of the country. What then?

The judge has to be very wise. Not young. Forty years old or in the forties is a no-no. Three judges are necessary for such a serious situation where the public opinion is divided so clearly. Otherwise one sits with incompetency in justice application. Legal IQ is not all that is necessary here. Graduating from University with a summa cum laude will be an asset but not a help. Years of deliberations in court, namely judicial experience is necessary. As my students use to say to me at Andrews University when I taught one class there on semester: “justice must be salted with mercy”. They were talking about me allocating points to their seminars that they handed in. But they were right. Only an experienced judge can make a proper decision and allocate the right verdict in a society’s public opinion that is so divided. The previous president jumped from the mountain and public opinion stopped the prosecution of that family for corruption. If this arrested president drink poison and die, will they also release all the people they arrested to make their point in line with the wish of 50% of the public opinion, in line with the second floor wheeling and dealing of the news outlet of this society tainted with their own agendas, politics, networks, financial bribes, ideology, skew status quo of lifestyle values?

On the case of “Malicious Legal Proceedings” it is pointed out that if someone has caused another to be imprisoned unlawfully, “the person who set the law in motion is not liable for the resulting loss if he acted bona fide”. However, “if he sets the law in motion, whether in civil or criminal proceedings, without justification in fact, maliciously, and without reasonable and probably cause, he commits an injuria for which he is liable in damages”. It is an old law and one can find it in the Roman-Dutch Law of Voet, 47.10.7. Here is the list of malicious legal proceedings:

1. malicious arrest of a person’

2. malicious prosecution of a person

3.malicious institution of civil proceedings against a person

4.malicious execution against the property of a person

Malice is when the prosecution “misleading the Court by a willful omission of material facts” (Wille 1968, 534). Also by “any improper or indirect motive or grossly negligent and reckless interference with the rights of another person” (Wille, 1968, 534).

If the society is sick, as our society is in this year 2017 here in South Korea, divided in public opinion, they only way out is a) a longer trial; b) decision for arrest or no arrest by a competent court of salted experienced “elders” jurists, men or women with many years in the saddle of the law and court, who can weigh the data and their presentations with care, consideration, wisdom, equity, balance, harmony.

The essentials of a good jurisdiction is it must be: 1. Reasonable; 2. Impartial; 3. In accordance with public opinion [??, sorry we have put a red card on this one above but the red card remains, in our current society the public opinion is 50% against 50% pro, thus not a help] 4. Applicable in practice; 5. Certain; 6. Comprehensive and finally 7. Publically promulgated (Wille 1968, 5 dealing with the essentials of national law).

The Christian and Adventist will do themselves a favor by distancing themselves from politics, jurisprudence at present since the next evil that will jump forward is civil right movements and agitation groups screaming or agitating for the equity that was severely upset in the affairs. It is a matter of time for them to realize this and the velocity of reaction may be severe so that Christians and Adventists safeguard themselves to abstain from involvement.

Since jurisprudence was impaired on matters mentioned above, one can probably say that this election is a “stolen election”. Daylight robbery.

But, behind and above and over this array of strange events, is God’s view of nations as a speck of dust in a bucket. He controls history for His own Time Charts of prophecy and a “Time of Trouble like there never was” is still ahead of us before the Second Coming.